Pilarcik v. Emmons

• Decision Date: 05 June 1998
• Docket Number: No. 96-1092,96-1092
• Citation: 966 S.W.2d 474
• Parties: 41 Tex. Sup. Ct. J. 643 Frank and Deborah PILARCIK, Petitioners, v. James R. EMMONS and Susie Emmons, Preston and Fern Hasty, Doug Johnson, Jim Kern, Mike and Kathy Kobos, Kelly and Susan Jones, and Troy and Nell Radford, Respondents.
• Court: Texas Supreme Court

Page 474

966 S.W.2d 474

41 Tex. Sup. Ct. J. 643

Frank and Deborah PILARCIK, Petitioners, v. James R. EMMONS and Susie Emmons, Preston and Fern Hasty, Doug Johnson, Jim Kern, Mike and Kathy Kobos, Kelly and Susan Jones, and Troy and Nell

Radford, Respondents.

No. 96-1092.

Supreme Court of Texas.

Argued on Feb. 25, 1997.

Decided April 14, 1998.

Rehearing Overruled June 5, 1998.

L. Kelly Jones, Bryan Thomas Cannon, Arlington, Matthew D. Goetz, Craig M. Price, G. Dennis Sheehan, Fort Worth, for Petitioners.

Anthony P. Jach, Arlington, for Respondents.

ABBOTT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, HECHT, ENOCH, SPECTOR, OWEN, BAKER and HANKINSON, Justices, join.

A group of homeowners sued Frank and Deborah Pilarcik alleging that they violated neighborhood restrictive covenants by installing a composition-type shingle roof on their home. The trial court granted summary judgment requiring the Pilarciks to remove the composition shingles from their home, and the court of appeals affirmed. 938 S.W.2d 473. We conclude that the Architectural Control Committee created by the restrictive covenants had the authority to waive a covenant prohibiting composition roofs and did so for the Pilarciks. Accordingly, we reverse the court of appeals' judgment and render judgment for the Pilarciks.

I

Susie and James Emmons, Fern and Preston Hasty, Doug Johnson, Jim Kern, Kathy and Mike Kobos, Susan and Kelly Jones, Nell and Troy Radford (collectively the "Plaintiffs") and the Pilarciks own homes in Waterwood Estates in Arlington, Texas. The homes in Waterwood Estates are subject to various deed restrictions, including the following provisions in article I, paragraph 9 related to roofing:

Roofs of composition type shingles will not be permitted. All roofs and dwellings or accessory buildings shall be constructed with wood shingles, unless an alternate roofing material is approved by the Architectural Control Committee. ¹

Article II of the restrictive covenants concerned "Architectural Control" and the Architectural Control Committee (ACC). Among other things, article II provided:

1. Architectural Control. No building shall be erected, placed, or altered on any lot until the construction plans, specifications and a plan showing the location of the structure shall have been approved by the Architectural Control Committee as to quality or workmanship and materials, harmony or exterior design with existing structures, and as to the location with respect to topography and finished grade elevation.... The Architectural Control Committee shall have the right to waive any Restrictions herein provided insofar as the same pertains to type of roof or quality of masonry to be used provided that the appraised value of the proposed house is not less than $50,000.00.

Article II, paragraph 2 listed the names and addresses of the Committee members and provided that "[i]n the event of death or resignation of any member of the Committee, the remaining members shall have full authority to designate a successor...." The Committee was comprised of five members: Frank Richards, Al Latimer, Don Mackay, Robert D. Johnson, and James Payne.

Paragraph 2 then set forth procedures that homeowners like the Pilarciks had to follow to obtain a waiver from any of the deed restrictions:

Procedure: Committee's approval or disapproval as required by this covenant shall be in writing. In the event the Committee or its designated representative fails to approve or disapprove within 30 days after plat, specifications and plot plan have been submitted to it or in any event if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the restrictive covenants herein contained shall be deemed to have been fully complied with.

In the spring of 1992, a severe hail storm damaged the roofs of several homes in Waterwood Estates. Many homeowners, including the Pilarciks, had to replace their roofs. The Pilarciks decided to install a composition roof after determining that their home would not structurally support other nonwood shingle alternatives, such as shale.

On September 3, 1992, the Pilarciks mailed written requests to all five members listed in the 1978 amended covenants, requesting the ACC to approve "Timberline or equivalent composition roof type material." Nothing in the record indicates that any of the ACC members ever received the Pilarciks' letter. On December 31, 1992, having received no response to their waiver request from the ACC within the 30 days specified in the amended covenants, the Pilarciks took delivery of roofing materials and began installing a Grand Manor "Shangle" Roof. ²

On January 8, 1993, when the roof was 98% complete, the Plaintiffs sued the Pilarciks, petitioning for and receiving a temporary restraining order enjoining the Pilarciks from proceeding with their roofing. The Pilarciks sent a second set of letters to the ACC members on January 8, 1993. The letters were returned to the Pilarciks as "undeliverable." The Pilarciks then phoned Frank Richards, a designated ACC member. After reviewing the roofing materials used, as well as obtaining other information about the quality of the Grand Manor shingles and surveying the neighborhood, Richards gave his written approval for the Pilarciks' roof. ACC member Al Latimer also gave his written approval. All other designated ACC members had previously resigned their ACC memberships.

Both the Pilarciks and the Plaintiffs filed motions for summary judgment. The trial court denied the Pilarciks' motion, granted the Plaintiffs' summary judgment motion, and ordered that the Pilarciks remove the composition shingle roof. The trial court concluded that, under the last sentence of article II, paragraph 1, the ACC could only waive restrictions on a "proposed house," and the trial court interpreted "proposed house" to mean a house yet to be constructed. Because the Pilarciks' house had already been constructed, the court determined that the ACC did not have the authority to waive the prohibition on composition roofs. The court of appeals affirmed, concluding that the "specific" prohibition in article I, paragraph 9, against composition roofs controlled over the "general" language in article II allowing the ACC to waive roofing restrictions. 938 S.W.2d at 478-79.

II

The Pilarciks maintain that the lower courts erred because the ACC has the authority to allow the use of composition-type shingles. They argue that the language of article II providing that "the [ACC] shall have the right to waive any Restrictions herein provided insofar as the same pertains to type of roof or quality of masonry" expresses an intent that the ACC would have the authority to waive any restriction pertaining to the roofs, exactly as the language says. The Pilarciks urge that all doubts about the construction of the covenants must be resolved in favor of the free and unrestricted use of the premises and against the party seeking to enforce the covenants. See Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex.1987); Crispin v. Paragon Homes, Inc., 888 S.W.2d 78, 81 (Tex.App.--Houston [1st Dist.] 1994, writ denied).

Moreover, the Pilarciks assert that they received ACC authorization to install a composition roof because the ACC did not respond "within 30 days" to the Pilarciks' September 3, 1992 letter in which they declared their intent to install Timberline shingles or an equivalent. Alternatively, the Pilarciks claim they subsequently received written ACC authorization from Frank Richards and Al Latimer in January 1993.

The Plaintiffs respond that the ACC did not have the authority to waive the composition shingle roof prohibition. Alternatively, the Plaintiffs argue that, assuming the ACC had such authority, the Pilarciks did not follow the procedures required to obtain a waiver of the prohibition.

Regarding the ACC's authority to allow composition shingles, the Plaintiffs first urge that the Pilarciks' interpretation of article II impermissibly renders meaningless the express prohibition against composition-type roofing materials found in article I, paragraph 9: "Roofs of composition type shingles will not be permitted." The Plaintiffs assert that article I, paragraph 9 is unambiguous. They argue that the correct interpretation is that the ACC may allow an alternative to wood roofing, so long as the alternative is not a composition-type material. Alternatively, because any authority given to the ACC in article II to waive roofing restrictions is restricted to a "proposed house," the Plaintiffs urge that the ACC may waive the composition shingle prohibition only in cases of new construction. Thus, the Plaintiffs conclude that any ACC roofing restriction waiver authority does not apply to the Pilarciks' replacement of an existing house roof. Finally, the Plaintiffs argue that Texas Property Code section 202.003(a)--requiring that covenants be liberally interpreted to effectuate the parties' intent--supplants Wilmoth v. Wilcox, 734 S.W.2d 656 (Tex.1987) and its progeny. See TEX. PROP.CODE § 202.003(a)("A restrictive covenant shall be liberally construed to give effect to its purposes and intent.").

ACC AUTHORITY TO WAIVE THE COMPOSITION SHINGLE RESTRICTION

The restrictive covenants are subject to the general rules of contract construction. See Scoville v. SpringPark Homeowner's Ass'n, 784 S.W.2d 498, 502 (Tex.App.-Dallas 1990, writ denied). Whether restrictive covenants are ambiguous is a question of law. Courts must examine the covenants as a whole in light of the circumstances present when the parties entered the agreement. See Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997); Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). Like a contract, covenants are "unambiguous as a matter of law if [they] can be given a definite or certain legal meaning." Grain Dealers, 943...